Judgment:
J.G. Chitre, J.
1. The appellants are assailing the judgment and decree passed by 1st Addl. District Judge, Ratlam in the matter of Civil Appeal No. 6-A/79.
2. Shri Amarsingh learned counsel appearing for the appellants submitted that the learned 1st Appellate Court committedthe error of law when the matter was revolving on two points :
(i)That the appellants were in adverse possession of suit land even as per averments made by Shankerlal Bhat before Sub-Divisional-Officer, Alot. When he averred that he was dispossessed from 28-6-49.
(ii) For the purpose of getting the exclusion of period of limitation, Shankerlal Bhat was not prosecuting the cause in the court which did not have the jurisdiction, and also he did not prove that he was prosecuting the said cause diligently.
3. For substantiating his contention Shri Amarsingh submitted that it is not necessary for the appellants to make out the special pleadings of adverse possession. They were entitled to make such a case from the averments made by Shankerlal Bhat in an application which was submitted before the S.D.O., Alot. and in the plaint. So far as second point is concerned, he submitted that as Shankerlal Bhat did not bring the LRs. of Phoolchand on record within time, the said second appeal abated and that shows that they were not diligent in pursuing the cause.
4. For substantiating his arguments Shri Amar Singh placed reliance on the judgment of Supreme Court in the matter of Nagubai Ammal v. B. Shama Rao(AIR 1956 SC 593). Wherein Supreme Court held that:
'Although no specific plea that the sale in favour of the defendants was affected by the doctrine of lis pendens was raised in pleading of the plaintiff and no specific issue was directed to that question the defendants went to trial with full knowledge, that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same.
In the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them.'
He also relied on the judgment of Supreme Court in the matter of Kali Prasad Agarwalla (dead by LRs) v. M/s. Bharat Koking CoalLtd. reported in AIR 1989 SC 1530, wherein the Supreme Court held that:
'Where the parties went to trial knowing fully well what they were required to prove and they had adduced evidence of their choice in support of the respective claims and that evidence was considered by both courts below, they could not be allowed to turn round and say that the evidence should not be looked into.'
5. Both these judgments are not concerned with the plea of adverse possession which requires that the person making contention of adverse possession has to aver that he was in continuous physical possession of the property in question, peacefully, hostile to the title of the owner. No such specific plea has been taken by the present appellants as indicated by W.S. filed in the suit.
6. Shri Amarsingh also placed reliance on the judgment of this court in the matter of Ishwardin v. Ganpat reported in 1985 MP WN (40) 47, wherein the facts were:
'It has been averred in the plaint that a sale deed dt. 19-5-1960 was executed by the defendant Ganpat in favour of the plaintiff Ishwardin for a consideration of Rs. 550/- in respect of the suit land and the plaintiff was put in possession of the suit land; there was a contemporaneous agreement to recover the suit land, in case the defendant repaid the sum of Rs.550/- within three years, i.e., up to 19-5-1963; and the defendant unlawfully dispossessed the plaintiff from the suit land in the year 1962. It was then pleaded that the plaintiff had perfected his title to the suit land on 19-5-1963, i.e., on expiry of the three years period within which repayment had to be made by the defendant, requiring reconveyance by the plaintiff to the defendant. The suit for possession was filed on 2-1-1975, claiming it to be within 12 years from 19-5-1963. The suit has been dismissed as time barred by the trial court. The decree has been affirmed by the first appellate court.'
Shri Amarsingh pointed out that in the said judgment this Court held :-
'On these facts, there can be no doubt, irrespective of the Article of the LimitationAct, which applied that the suit was time barred. Even otherwise, from the plaint averments itself, it is clear that the defendant's adverse possession commenced in the year 1962 and, therefore, according to the plaintiff himself, adverse possession of the defendant was for more than 12 years prior to the suit being filed in January 1975. Viewed at from any angle, the suit is clearly time barred on the plaint averments itself. It was, therefore, rightly dismissed.'
Pointing out the observations of this Court in the matter of Ishwardin v. Ganpat (supra), Shri Amarsingh submitted that appellants were entitled to make out a case of adverse possession from the averments made by Shankar Bhat in the said application and in the plaint. It is necessary to point that the facts of the judgment of their case (Ishwardin v. Ganpat) were quite different: In that case the matter was revolving around a conditional sale.
7. Thereafter Shri Amarsingh pointed out the provisions of Section 31, Articles 64, 65 of Limitation Act and Article 142 of old Limitation Act. He argued that the sale in question was pertaining to year 1946 and dispossession was in the year 1949. Therefore, the limitation would (sic) in view of Art. 142. He placed reliance on the judgment of this court in the matter of Smt. Sunderbai v. State of M.P. reported in AIR 1984 Madh Pra 146.
8. Countering to this, Shri R. C. Kochatta, counsel for the respondent-Shankarlal Bhat, submitted, that Art. 65 was brought in existence for the purpose of settling the conflicts which were created by interpretation of old Limitation Act. He placed reliance on the judgment of Supreme Court in the matter of Nair Service Society Ltd. v. K. C. Alexander reported in AIR 1968 SC 1165, wherein Supreme Court held that (para 14):
'The amendment which has been brought by enacting Arts. 64 and 65 of Limitation Act, 1963 was not remedial but declaratory of the law.'
He argued that by enacting Arts. 64 and 65, the conflicting interpretation of law was setright. According to him the provisions of Arts. 64 and 65 were applicable and, therefore, arguments advanced by Shri Amarsingh for appellants hold no ground. I find sub- stance in the arguments made on behalf of Shankarlal Bhat by his counsel Shri R. C. Kochatta. The provisions of Arts, 64, 65 are declaratory and not remedial. By enacting these articles, the conflicting interpretation has been set at rest. Therefore, the present matter will have to be viewed in view of Arts. 64 and 65.
9. Shri R. C. Kochatta pointed out that in the present matter, Ex.P-1 shows that application was preferred by Shankarlal Bhat before S.D.O., Alot. on 28-9-49. Ex.P-2 was the reply submitted by Jamnabai, the vendor of Shankarlal Bhat so far as suit land is concerned. She averred in her reply that said revenue Court did not have the jurisdiction to grant the relief as claimed by Shankarlal Bhat by the said application. Ex.P-3 also shows that Chaturbhuj, the father of present defendant-appellant, raised the same sort of contention by contending that said 'revenue court did not have the jurisdiction to adjudicate over the application and grant relief to Shankarlal Bhat. Ex.P-25 shows that S.D.O., Alot. held by his judgment dt. 13-9-60 that said court did not have the jurisdiction to adjudicate on the said application of Shankarlal Bhat and grant him the relief prayed by him.
10. Ex.P-26, the judgment of Collector, Ratlam dt. 24-7-61 also confirmed the said finding of want of jurisdiction of revenue court. Ex.P-27 shows that an appeal preferred by Shankarlal Bhat to Additional Commissioner, Bhopal was decided on 4-7-62 and Addl. Commissioner, Bhopal refused to interfere in the orders of courts below and confirmed the verdict of no jurisdiction of revenue court.
11. Pointing these documents, Shri R. C. Kochatta argued that Shankarlal Bhat was pursuing his cause in the court which was not having jurisdiction and, therefore, his case falls within purview of S. 14 of LimitationAct, 1963 and, therefore, he is entitled to get exclusion of period of limitation.
12. Shri Kochatta further argued that as the legal representatives of Chaturbhuj were -not brought on record within time, his appeal was abated and, therefore, decision of the S.D.O., Alot. stood confirmed holding that he did not have the jurisdiction. Therefore, on that count it will have to be held that Shankarlal Bhat was pursuing his cause in the court which was not having the jurisdiction. -
13. He further argued that the fact that Shankarlal Bhat preferred an appeal before the Collector, Ratlam, Additional Commissioner, Bhopal, and filed a revision petition also shows that he was quite diligent in pursuing his cause. And, therefore, the arguments of Shri Amarsingh that he was not diligent does not hold ground.
14. Shri Kochatta, further pointed out that by decision of this Court in the matter of Civil Revision No. 794/73, the point of res judicata, as argued by Shri Amarsingh, has also no ground. After perusing the judgment in the said revision, I upheld the arguments of Shri R. C. Kochatta on this point.
15. Thus, summing up all, I do not find that the judgment and decree of 1st Appellate Court suffers from infirmity or perversity. It is also not illegal. The 1st Appellate Court has considered all necessary facts of this case and has delivered a judgment and passed the decree in pursuance of that which needs no interference. Thus, no substantial question of law involved and in the result this appeal stands dismissed.
16. Stay granted by this court by its previous order stands vacated. Shankarlal Bhat is entitled to receive cost of this litigation, as he has contested before admission to the tune of Rs. 250/-.